Holman v. Holman , 80 Me. 139 ( 1888 )

Walton, J.

It is the opinion of the court that the defendant should have had notice of the inquisition by the selectmen. It is true that there is no express statute provision requiring such notice. But it is a well settled rule of the common law that when an adjudication is to be made wdiich wiil seriously affect the rights of a person, he should be notified and have an opportunity to be heard. Necessity creates some exceptions to the rule. But no such necessity exists in the class of cases of which we are now speaking. The allegations against the defendant were that, he was of unsound mind; that by debauchery he had become incapable of managing his affairs, and was so wasting his estate as to expose himself to want and the town to expense. Surely, charges like these are too serious, and an adjudication upon them too important, not to entitle the person charged to a hearing. It is said that a hearing may be had in the probate court after the inquisition by the selectmen is made and returned. True. But such an adjudication by the selectmen is no trifling matter. It is the foundation of all subsequent proceedings, and may seriously affect a man’s reputation and standing in.the community. And we believe an appeal to any one’s sense of justice and fairness will compel him to admit that a person thus charged ought to have an opportunity to be heard before such an adjudication is made, even by the selectmen of a town.

We do not find any decision in this state or Massachusetts which holds directly and positively that such a notice is necessary; because, in all the cases in which the question is discussed, there happened to be other grounds on which the decisions might rest. But it seems to have been the opinion of the courts that such a notice ought to be given. Chase v. Hathaway, 14 Mass. 222 ; Hathaway v. Clark, 5 Pick. 490.

In this state, in Peacock v. Peacock, 61 Maine, 211, it was held that, although a guardian for a child two years old, whose father was dead, might be appointed without notice, still no decree could be made depriving the mother of its care and custody without notice to her, although there was no express statute requiring such notice. The decision rests on the dictates of natural justice and the rules of the common law.

We think the want of notice to the defendant of the inquisition by the selectmen'was a valid objection to proceeding further in the probate court; that the objection was seasonably taken, and the appeal not- premature. The court so ruled at nisi prius. The ruling was correct.

Exceptions overruled. Decree below affirmed.

Peters, C. J., Virgin, Libbey, Foster and Haskell, JJ., concurred.